Sherwood v. Prelesnik

• Decision Date: 03 September 2009
• Docket Number: No. 08-1019.,08-1019.
• Citation: 579 F.3d 581
• Parties: Michael Paul SHERWOOD, Petitioner-Appellant, v. John PRELESNIK, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

579 F.3d 581

Michael Paul SHERWOOD, Petitioner-Appellant, v. John PRELESNIK, Respondent-Appellee.

No. 08-1019.

United States Court of Appeals, Sixth Circuit.

Argued: June 16, 2009.

Decided and Filed: September 3, 2009.

[579 F.3d 583]

ARGUED: Stuart G. Friedman, Kirsch & Satawa, P.C., Southfield, Michigan, for Appellant. Debra M. Gagliardi, Office of the Michigan Attorney General, Lansing, Michigan, for Appellee. ON BRIEF: Stuart G. Friedman, Mark A. Satawa, Kirsch & Satawa, P.C., Southfield, Michigan, for Appellant. Brian O. Neill, Office of the Michigan Attorney General, Lansing, Michigan, for Appellee.

Before KEITH, COLE, and WHITE, Circuit Judges.

OPINION

WHITE, Circuit Judge.

Michael Sherwood, a Michigan prisoner, appeals a district court judgment dismissing his petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 as barred by the one-year statute of limitations in § 2244(d). A panel of this court granted Sherwood a certificate of appealability on two issues: (1) whether a timely motion for rehearing in a state supreme court on a post-conviction appeal tolls the time for a habeas corpus petition under 28 U.S.C. § 2244(d); and (2) whether cases pending when the Supreme Court overruled Abela v. Martin, 348 F.3d 164 (6th Cir.2003), in Lawrence v. Florida, 549 U.S. 327, 127 S.Ct. 1079, 166 L.Ed.2d 924 (2007), are entitled to equitable tolling. Under the facts presented here, we answer both questions in the affirmative, and reverse the district court's dismissal of Sherwood's petition.

I.

In 2002, Sherwood was charged with six counts of criminal sexual conduct in the first degree in violation of Mich. Comp. Laws, § 750.520b(1)(b)(ii) (victim age thirteen to fifteen and actor related to victim). After a jury trial, Sherwood was convicted of five of the six counts. On May 1, 2002, he was sentenced to concurrent prison terms of ten to thirty years for each count. Sherwood appealed, and the Michigan Court of Appeals affirmed his conviction. People v. Sherwood, No. 242717, 2003 WL 22796827 (Mich.Ct.App., Nov. 25, 2003). The Michigan Supreme Court denied Sherwood's application for leave to appeal on June 30, 2004. People v. Sherwood, 470 Mich. 885, 682 N.W.2d 95 (2004).

On September 29, 2005, rather than file a petition for writ of habeas corpus, Sherwood filed a motion for post-conviction relief pursuant to Michigan Court Rule 6.500 et seq. The trial court denied the motion, and the Michigan Court of Appeals denied leave to appeal. Sherwood then sought leave to appeal to the Michigan Supreme Court, which was denied on January 29, 2007. Sherwood filed a timely motion for reconsideration of the Supreme Court's January 29, 2007 order, which was denied on April 24, 2007. People v. Sherwood, 477 Mich. 1118, 729 N.W.2d 848 (2007).

On April 30, 2007, with the assistance of counsel, Sherwood filed a petition for a writ of habeas corpus in the U.S. District Court for the Western District of Michigan. A magistrate judge reviewed Sherwood's petition and recommended that the district court dismiss the petition as barred by the one-year statute of limitations provided in 28 U.S.C. § 2244(d)(1). The district court adopted the magistrate's report and recommendation and dismissed Sherwood's petition, rejecting Sherwood's argument that the statute of limitations was tolled while his motion for reconsideration was pending before the Michigan Supreme Court. Sherwood filed a motion for reconsideration of the district court's order, which was denied.

Sherwood requested a certificate of appealability from the district court, which was denied. Sherwood then requested a certificate of appealability from this court, and this court granted rehearing of a single-judge order denying the certificate, and allowed an appeal on two issues: (1) whether a timely motion for rehearing in a state supreme court on a post-conviction appeal tolls the time for a habeas corpus petition under 28 U.S.C. § 2244; and (2) the effect of equitable tolling on the time for filing a petition for habeas corpus with respect to cases pending when the Supreme Court overruled Abela v. Martin, 348 F.3d 164 (6th Cir.2003), in Lawrence v. Florida, 549 U.S. 327, 127 S.Ct. 1079, 166 L.Ed.2d 924 (2007).

II.

This court reviews a "district court's decision to grant or deny a writ of habeas corpus de novo; however, the district court's factual findings will not be disturbed unless they are clearly erroneous." Dunlap v. United States, 250 F.3d 1001, 1004 (6th Cir.2001). "Questions of statutory construction are also reviewed de novo." Id. Specifically, this court reviews de novo the district court's decision not to apply equitable tolling. Griffin v. Rogers, 399 F.3d 626, 635 (6th Cir.2005).

As amended by the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. 104-132, 28 U.S.C. § 2244(d) states:

(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of—

(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;

(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;

(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or

(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.

(2) The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.

Under § 2244(d)(1), a "1-year period of limitations shall apply to an application for a writ of habeas corpus by a person in custody pursuant to a judgment of a State court." The statute of limitations begins to run from the latest of four circumstances, one of which is the "date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." 28 U.S.C. § 2244(d)(1)(A). In the instant case, Sherwood appealed his conviction first to the Michigan Court of Appeals, and then to the Michigan Supreme Court. The Michigan Supreme Court denied his application on June 30, 2004, and Sherwood had ninety days from that date to file a petition for writ of certiorari with the United States Supreme Court, which he declined to do. Thus, his conviction became final on September 29, 2004, when the time period for seeking certiorari expired. Bronaugh v. Ohio, 235 F.3d 280, 283 (6th Cir.2000) (one-year statute of limitations does not begin to run until the time for filing a petition for a writ of certiorari for direct review in the United States Supreme Court has expired); see Lawrence, 127 S.Ct. at 1083 (acknowledging that direct review under § 2244(d)(1)(A) "encompass[es] review of a state conviction by [the Supreme] Court.")

Sherwood's one-year time limit for filing a habeas petition began running on September 30, 2004. On September 29, 2005, with two days of the one-year time period remaining, Sherwood filed a motion for post-conviction relief under the Michigan court rules. Pursuant to § 2244(d)(2), the time during which this motion was "pending" is not counted toward the period of limitations. The parties agree that the one-year time period was tolled at least until January 29, 2007, the date the Michigan Supreme Court denied Sherwood's application for leave to appeal. However, Sherwood filed a timely motion for reconsideration, which was denied on April 24, and Sherwood's habeas petition was filed on April 30.

On September 11, 2007, the district court dismissed Sherwood's habeas petition as untimely, finding that the statute of limitations had resumed running on January 29, 2007, making Sherwood's April 30 petition untimely by three months. Sherwood v. Prelesnik, No. 1:07-CV-425, 2007 WL 2694512 (W.D.Mich. Sept. 11, 2007). The district court stated: "[c]ourts in the Sixth Circuit view state post-conviction review as ending when the state supreme court denies leave to appeal, not when the state supreme court denies a motion for reconsideration." Id. at *1. On this basis, the district court dismissed Sherwood's petition as untimely, finding that when the Michigan Supreme Court denied Sherwood's motion for leave to appeal on January 29, "the statute was no longer tolled ... Petitioner had two days remaining, until January 31, 2007, in which to file a petition for habeas relief. Since Petitioner did not file until April 30, 2007, his Petition is time-barred by § 2244(d)(1)(A)." Id.

Sherwood filed a motion to reconsider the district court's September 11 order, and on December 13, 2007, the district court issued a second order upholding its earlier decision, but acknowledging that it was not clear in this circuit "whether state post-conviction review ends, for purposes of § 2244(d), when a state's highest court denies leave to appeal or denies a motion for reconsideration." Sherwood v. Prelesnik, No. 1:07-CV-425, 2007 WL 4358179, *1 n. 2 (W.D.Mich. Dec. 13, 2007). The court explained:

Petitioner argues that the Court failed to consider one vital fact: Petitioner filed a timely motion for reconsideration of the denial of leave with the Michigan Supreme Court on February 27, 2007, which was denied on April 24, 2007. Petitioner argues tolling continued until this motion was denied. Assuming, arguendo, that Petitioner is correct and that a palpable defect exists in the Final Order, Petitioner still filed his habeas petition four...